High Court torpedoes chaplaincy program – for the second time

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Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

The High Court has again ruled unconstitutional the federal funding for school chaplains, casting doubt over the future of a program to which the Abbott government is deeply committed.

Queensland father of six Ron Williams has won his second challenge to the program, which is allocated $245 million in the budget. After his first successful case, the Gillard government passed catch-all legislation to try to put beyond legal doubt the funding for some 400 programs that the court decision had potentially endangered.

Constitutional expert Anne Twomey, a law professor at Sydney University, told The Conversation that the decision was specifically related to the chaplaincy program, and did not automatically put at risk all 400 programs covered by the Labor legislation. It did call into question those where the Commonwealth did not have a specific head of power but they would have to be challenged individually, she said.

“The decision reinforces that the executive can’t just spend money on what it likes,” Twomey said.

She said that in the wake of the judgement the federal government could give funds to the states to maintain the program, but there was a question as to whether this would need federal legislation – which could run into trouble in the Senate.

In its unanimous decision the court found that providing a school with the services of a chaplain or welfare worker for the objective described under the regulations is not a provision of “benefits to students” within the meaning of section 51 of the constitution, which defines federal powers. “The Commonwealth’s entry into, and expenditure of money under, the funding agreement was not supported by the executive power of the Commonwealth.”

Prime Minister Tony Abbott said the government would respond after it had studied the High Court judgement.

“This is a policy that was invented by the Coalition, it was supported by the Coalition, it was confirmed by the Coalition, so we very much support it and we want it to continue,” Abbott said.

The program was started under the Howard government. While it previously had bipartisan support, it recently became controversial when the government scrapped the provision inserted by Labor that secular welfare workers were included under it. The money goes to some 3700 schools, which are eligible for up to $72,000.

Williams said after today’s judgement: “I think we can call this a 6-nil clobbering”.